Cross-border Debt Recovery Blog
by Marco Sposini
Laywer, Milan Bar Association
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The Court of Justice on public policy in the recognition and enforcement of judgments under Articles 34(1) and 45(1) of Regulation (EC) No 44/2001
7 September 2023
The Court of Justice of the European Union, by judgment ECLI:EU:C:2023:633, dated 7 September 2023, in Case C-590/21 – in proceedings between, on the one hand, Charles Taylor Adjusting Ltd and FD, the representatives of the insurers of a maritime vessel named Alexandros T, and, on the other hand, Starlight Shipping Co., the proprietor of that vessel, and Overseas Marine Enterprises Inc., the operator of that vessel, concerning the recognition and enforcement, in Greece, of a judgment and two orders handed down by the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court) (United Kingdom) – ruled that article 34(1) of Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in conjunction with Article 45(1) thereof, must be interpreted as meaning that a court or tribunal of a Member State may refuse to recognise and enforce a judgment of a court or tribunal of another Member State on the ground that it is contrary to public policy, where that judgment impedes the continuation of proceedings pending before another court or tribunal of the former Member State, in that it grants one of the parties provisional damages in respect of the costs borne by that party on account of its bringing those proceedings on the grounds that, first, the subject matter of those proceedings is covered by a settlement agreement, lawfully concluded and ratified by the court or tribunal of the Member State which gave that judgment and, second, the court of the former Member State, before which the proceedings at issue were brought, does not have jurisdiction on account of a clause conferring exclusive jurisdiction.
In the present case, subject to the examination by the referring court, the recognition and enforcement of the judgment and orders of the High Court – which could be classified as ‘“quasi” anti-suit injunctions’ – are liable to be incompatible with public policy in the legal order of the Member State in which recognition and enforcement are sought, inasmuch as that judgment and those orders are such as to infringe the fundamental principle, in the European judicial area based on mutual trust, that every court is to rule on its own jurisdiction.
Furthermore, that type of decisions is also such as to undermine access to justice for persons on whom such injunctions are imposed, since by granting, in the form of provisional damages, the costs borne by the defendant as a result of having brought proceedings which are pending before a court of the Member State in which recognition and enforcement are sought, such compensation makes it more difficult for the applicant to continue those proceedings, or even prevents that applicant from doing so.
The text is available here